| Return to Contents The Court Of Appeal - Use Or Abuse? Anthony Olsen The visionaream [1] It is the first stated purpose of the Court of Appeal (Jersey) Law, 1961 to establish the Court of Appeal of Jersey. The new appellate court assumed jurisdiction to hear and determine appeals from both the Inferior and Superior Numbers of the Royal Court, sitting as courts of first instance in the exercise of j "in any civil cause or matter" [2] . Occasional, indeed exceptional, appeals to the Privy Council aside, the Court of Appeal is thus in practice the ultimate forum for the dispensation of civil justice in this Island. That it would be a court with an important function to perform was no doubt in the mind of the legislature when designing its judges’ oath of office. The oath features some noble and lofty language; for example, the judges swear "par la foi et serment que vous devez à Dieu" that they willsustain and defend - " ... tous les lois, libertés, usages et anciennes coûtumes dudit Bailliage, vous opposant à quiconque les voudrait enfreindre ..." Was it in the mind of the legislature, back in 1961, that litigants would one day bring to this august new court appeals against procedural orders and case management decisions made by the Royal Court judges not only regularly, but also on occasion, one might be forgiven for thinking, virtually as a matter of course? It is submitted that to such a question there can only be one answer. To borrow from Wordsworth, if the creation of the Court of Appeal and its intended function taken together constituted a visionary gleam, one might well indeed ponder whither it is fled, when contemplating an appeal against an order for specific discovery of documents or something of the like. The diversion of the time of the Court of Appeal’s three busy judges to appeals on case management issues must be undesirable, particularly when there are many drug-trafficking and other serious criminal appeal cases nowadays clamouring for their attention. In addition, it is surely unseemly that the wisdom and authority of experienced judges of the Royal Court should be thus almost routinely called into question. It goes without saying that appeals of this sort are apt to delay the eventual hearing of the action and to drive up the costs. It is very often the case that procedural orders are made by the Court below as a matter of the exercise of its discretion. It is well settled that an appellate court is, or should be, slow to interfere wiers. The leading Jersey authority on this point is the well-known case of Rahman v Chase Bank [3] . The plaintiffs had obtained an interim injunction restraining the defendant from making payments under the settlement of which it was trustee. Upon the application of the defendant, the injunction was lifted by the Royal Court in the exercise of its discretion. The plaintiffs appealed against that order. The Court of Appeal cered two Jersey es, Delgaty v Falle [4]and Cutner v Green [5], holding that they established that the Court of Appeal would not interfere with a discretion exercised by the Royal Court except on grounds of law, or unless it appeared that on other grounds injustice will result from the manner in which such discretion has been exercised. (Incidentally, it is interesting to note the use of the arguably pejorative ‘interfere’ rather than the perhaps more neutral ‘intervene’ in these and certain of the other authorities which we shall consider.) The Court then went on to consider the spord Brandon in The Abdin Daver [6] . In that case, his Lordship had concluded that the appellate court could only ‘interfere’ in the exercise by a judge of his discretion in three cases: first, if the judge below had misdirected himself with regard to the principles in accordance with which his discretion was exercised; second, if he had taken into account matters which he ought not to have taken into account, or had failed to take into account matters which he ought to have done; and third, quite simply, if his decision was "plainly wrong". The Court of Appeal in Rahman followed Hadmor Pros Limited v Hamilton [7]in adding to these three grounds a fourth, namely that the appellate court will ‘interfere’ where there has been a change of circumstances following the date upon which the judge below made his order. It was on the basis of this fourth ground that the appeal was allowed, the Court holding that there had indeed been a change of circumstances. It was, they said, ‘certain’ that, had the Royal Court been aware of it at the time of making the order appealed against, it "would have been bound to approach the case in quite a different way." In those exceptional circumstances the order was varied. It will thus be seen that the band of the appellate court’s power to ‘interfere’ in the exercise of discretion by a court below is a narrow one. In appeals against case management orders it is submitted that the band should be narrower still. In Rahman the issue was, strictly speaking, procedural, though it can hardly be said to have been a case-management one - after all, the imposition of an injunction restraining trustees from effecting payments under a settlement is of pretty substantive importance to those of the beneficiaries whose interests are thereby affected! The order appealed against in Rahman could be fairly described, perhaps, as a quasi-substantive one. Pacific Investments Limited v Cn and others [8] , on the other hand, involved no substantive or quasi-substantive issues. The defendants had applied to strike out the plaintiff’s Order of Justice. One of them had filed an affidavit in support of the striking out application. At the instance of the plaintiff, the Lieutenant Bailiff ordered that the deponent be made available for cross-examination on his affidavit during the hearing of the striking out proceedings. The defendants appealed against that order, inter alia,leave to appeal having been granted by the Lieutenant Bailiff. The appeal was dismissed. Announcing the unanimous decision of the Court of Appeal, Calcutt JA stated: "In my view the Lieutenant Bailiff reached the correct conclusion, and I would dismiss the appeal on that ground. But the matter was one for the exercise of the discretion of the Lieutenant Bailiff and, for my part, I would not have been willing to have disturbed his exercise of that discretion. Accordingly, in my judgment, the first interlocutory appeal fails." It is submitted that the appellate court should be even slower to ‘interfere’ in cases where discretion has been exercised in the court below in relation to a matter of mere procedure or case-management than in relation to substantive and quasi-substantive matters in issue between the parties. The Court of Appeal’s decision in Pacific Investments might be considered to constitute some support for such a submission. Case-management There have been some interesting judicial pments in the field of case management in recent years. In Ashmore v Corporation of Lloyd’s [9]Gatehouse J had decided that the matter of whether the defendants owed a duty of care to the plaintiffs should be determined as a preliminary issue. The plaintiffs appealed to the Court of Appeal against the order, contending that the points of law ordered by the judge to be tried did not cover the plaintiff’s case that there was a duty in tort and could not be decided in advance of oral evidence concerning certain admissions alleged to have been made by Lloyds. The appeal was allowed. The House of Lords, however, unanimously restored the decision of Gatehouse J. Lord Roskill stated: "In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty." Lord Templeman added: "The appellate coud be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial, the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong." [10] In the instant case, his Lordship plainly disapproved of the fact that that the order of the judge below had not been, as he put it, "respected"; indeed, the learned judge below should have been supported, not criticised: "The judge thought he would be assisted by an early deliberation of issues of law, whatever the result of that consideration. He deserved support." The first paragraph of a 199e Direction [11] contains the following sentence: "The paramount importance of reducing the cost and delay of civil litigation makes it necessary for judges sitting at first instance to assert greater control over the preparation for and conduct of hearings than has hitherto been customary." Both the House of Lords’ observations in As v Lloyds and that Practice Direction were considered in Thermawear v Linton and Another [12] . In the course of his judgment Sir Thomas Bingham M.R. said: "Those observations in the House of Lords and the Practice Direction are to be read against growing recognition that the luxurious approach to the expenditure of court time which was indulged in the past is something which, in the interests of litigants as a whole, simply cannot be any longer afforded." The facts were that the appellants applied for leave to appeal against Lightman J’s order that certain issues be tried before others in the substantive proceedings. The learned judge had so ordered, as he said, "as a matter of proper case management and as a matter of justice." It was his expressed view that the course which he had ordered to be followed served to facilitate the "expeditious economic resolution" of the disputes between the parties. The Master of the Rolls held that matters such as this fell, "fairly and squarely within the growing procedural decision-making area accorded to the trial judge" and continued: "As the authorities make quite clear, this Court should be very reluctant to interfere unless satisfied that the trial judge is wrong and, on the facts of this case, speaking for myself, I am not only not satisfied that the Judge was wrong, but it seems to me in every way an appropriate order for him to have made. He does not appear to me to have overlooked any relevant factor, and I would commend his obvious determination to try and avoid the time-consuming investigation and exploration of issues which may never ... arise." Henry L.J. seems to sum up the thinking of the appellate court in this pithy statement from his brief concurring judgment: " Many critics believe that the adversarial system has run into the sands in that today delay and costs are too often disproportionate to the difficulty of the issue and the amount at stake. The solution now being followed to that problem requires a more interventionist judiciary, the judge as trial manager. It sees to me important that a judge so acting should be given proper freedom by this Court in which to exercise [his] powers ... the margin of appreciation allowed to him in the exercise of his discretion should be generous." The Jersey Court of Appeal has very recently th an appeal relating to case-management issues. In Mayo Associates S.A and others v Cantrade Private Bank and another [13]the plaintiffs alleged constructive trust, equitable fraud, negligence and breach of contract against the defendant bank and sued for a total of some $45 million, being investors’ losses of $27 million and alleged losses of past and future profits for commission and other matters amounting to some $18 million. The bank, whilst denying liability, decided to make an ex gratia offer to investors to compensate them for their losses plus interest, but was not prepared to offer compensation to the plaintiffs for their own alleged loss of profits. The bank was not in a position to communicate with some of the investors, whose names and addresses it did not know; it issued a representation seeking the appointment by the Royal Court of the Viscount for the purposes of dealing with the offers on the investors’ behalf, or alternatively to act as an administrator of the interests of the investors. The plaintiffs in response served a summons seeking an order that the Royal Court did not have jurisdiction to grant the relief sought in the representation. When the plaintiffs’ summons came on for hearing before the Bailiff sitting in Chambers, he directed that the issue raised therein should not be heard as a preliminary issue, but rather as one of the issues to be determined in the defendant bank’s representation. The plaintiffs sought leave from the Court of Appeal to appeal against that order. Leave was refused. Gloster JA cited Ashmore v Lloyds with approval and stated that the Bailiff’s decision: " ... was a procedural decision as to a case management matter. There is well established authority for the proposition that such a matter rests fairly and squarely within the discretion of the judge in control of the proceedings, with whom an appellate court should not lightly interfere and whose decision the appellate court should respect unless plainly wrong." Note the use of that word ‘interfere’ again. Later in her judgment (with which Carlisle JA and Beloff JA concurred), the learned Judge of Appeal went on to say: "Any concern ... that the hearing of the representation might turn into a mini-trial of issues that will arise in the main action can properly be dealt with by the Bailiff in his management of the hearing of the representation ... In all the circumstances I see no reason whatsoever for interfering in a decision that, as a case management matter, was clearly within the Bailiff’s discretion. Accordingly, I would dismiss this application for leave to appeal." Conclusion It seems to have become common practice in some jurisdictions nowadays for litigants to posture and generally play games with one another and the disease has predictably reached Jersey. The growth of the finance industry in this Island has inevitably brought in its wake litigation involving sometimes huge sums. The amounts in issue no doubt seem, to those involved in the proceedings at any rate, to provide commercial justification for conducting complex, prolix and no doubt fiendishly expensive "satellite litigation" - an expression used by Saville LJ in Grupo Torras and v Al Sabah and others [14] . At quite the other end of the scale, our current tour de rôle system of legal aid allows the fully-subsidised litigant to do more or less whatever he may please at little or no risk to his own finanition. [15] It is submitted that whether the litigant be a multi-national corporation or a pauper, access to the Court of Appeal should be a matter of last resort; such access is not an acceptable ingredient of game-playing or posturing. It cannot have been the intention of the legislature in 1961 to allow the Court of Appeal to be used, or abused, for such purposes as strategic appeals against case-management orders nor for satellite litigation. It is submitted, with respect, that it would be a useful first step if the Royal Court judges were to exercise a more pro-active case-management rôlein future and, in addition, encouraged to be most circumspect when considering applications for leave to appeal against their case-management orders. Leave to appeal should be granted only in exceptional circumstances - for example, if the effect of the order of the Royal Court judge were to strike out a party’s case or significantly to prejudice his substantive position. It is further submitted that for three judges of the Court of Appeal to consider such appeals is both unnecessary and a waste of valuable judicial time. In England, the Court of Appeal usually consists of two judges for appeals against interlocutory orders and interlocutory judgments. There is provision for a third, but only in rare cases. Three judges will constitute the required quorum only if: "the appeal involves points of suy or such importance to the general law as to require a hearing before three Lord Justices." [16] One wonders if even two judges are not one too many for the purposes of determining such appeals. Whatever the position in England may be, it is submitted that a single judge of the Jersey Court of Appeal, sitting alone, should surely be sufficient to constitute a competent tribunal for the purposes of determining any appeal against a procedural or case-management order. Anthony Olsen is an advocate of the Royal Court and is the senior partner of Olsen, Backhurst and Dorey, Eaton House, Seaton Place, St. Helier, Jersey JE2 3QL. |